Burden of proof: Gay refugees face unique challenges in their journey to Canada

Monday, May 1, 2017

When they reach Canadian soil, gay refugees fleeing repressive, homophobic regimes face a maddening challenge. Fearing being beaten, jailed, tortured or killed in their home countries, they hide their sexual orientation all their lives. In Canada, they face a 180: to secure status as a persecuted minority, they are asked to prove their sexuality on the spot.

This means furnishing refugee boards with detailed documentation of their same-sex relationships – intimate texts, letters, photographs and other romantic artifacts they may have erased, or never manufactured, for their own safety. Other gay refugees have no boyfriends or girlfriends to show at all, having remained single out of fear.

Without proof, gay refugee claimants’ credibility is shot. How do they convince Canada to give them sanctuary?

On May 1, Canada will begin to address the unique circumstances that this highly vulnerable population faces with the country’s first ever guidelines entirely devoted to LGBTQ refugee claimants. The guidelines set out best practices and expectations for decision makers sitting on refugee boards nationwide.

“Before this, we’ve had to rely on board members having good judgment, having good discretion,” said Sharalyn Jordan, an organizer with Vancouver’s Rainbow Refugee, which assists LGBTQ claimants. “This makes me very hopeful that we will start seeing more consistent, more just decisions.”

The guidelines warn against stereotyping and against applying standards from Canada to claimants from other countries. They highlight the impact that trauma has on people’s memories. And they urge decision makers to weigh evidence in the context of ongoing persecution: Would it be safe for a lesbian in a homophobic regime to walk back into the police station where she was jailed, without charge, to ask for her police records so Canadian officials could pore over them later?

“This is intended to promote a greater understanding of the diversity and complexity of the situation of sexual and gender minority individuals,” Anna Pape, a spokesperson for the Immigration and Refugee Board of Canada, said of the new guidelines, which involved consultations with LGBTQ advocates, researchers, refugee lawyers and social workers.

Around the world, sexual minorities face terrifying discrimination and threats to their lives. The latest horrific reports have come from Chechyna, where gay men have been rounded up in pogroms, tortured and killed, with Canada doing little so far to help them. Flouting human rights norms, approximately 73 countries and states worldwide outlaw gay sex, 13 of them with a death penalty, according to a 2016 report titled State-Sponsored Homophobia, authored by researcher Aengus Carroll and published by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).

“When someone comes to Canada and says, ‘Don’t send me back to my home country, I’m going to be persecuted, tortured or killed,’ we need to take that very seriously. If we get the decisions wrong in these cases, we are not only breaching international law, we’re exposing individuals to severe risk,” said Sean Rehaag, a professor specializing in refugee law at Toronto’s Osgoode Hall Law School.

Some 2,234 refugees claimed asylum in Canada on the basis of their sexual orientation between 2013 and 2015, according to Prof. Rehaag. Of those claims, 70.5 per cent were successful – a figure higher than the overall grant rate to all refugees of 62.5 per cent. Fraudelent claims remain extremely rare: just 2.2 per cent of all refugee claims were declared to have no credible basis or to be fraudulent in 2013, Prof. Rehaag said.

Canada’s new guidelines are a step in the right direction. Still, it remains incredibly difficult to fairly determine a person’s sexual orientation. In other cases, the homophobic attacks are so gruesome that Canadian decision makers find them implausible – and the claimant not credible as a result.

“It is not a case of board members being overtly homophobic or transphobic but … of ethnocentric criteria being applied,” said Rainbow Refugee’s Prof. Jordan, who teaches psychology at Simon Fraser University. “Assumptions that Canadians have about lesbian, gay, bi, or trans identities and the ‘coming out’ model – that people will be in relationships and seek out community as soon as they arrive – these myths and stereotypes don’t fit for somebody who is fleeing persecution.”

The Globe spoke with five gay refugees from all over the world about being exiled and finding their way to Canada.